NII BOI v.

ADU
[1964] GLR 410

Division: IN THE SUPREME COURT

Date: 22 JUNE 1964
Before: MILLS-ODOI, OLLENNU AND ACOLATSE JJ.S.C.

Evidence—Admissibility—Testimony of a representative—Defendant blind—Permission by court for

defendant to be represented and assisted in prosecution of action—Defendant sworn—Evidence given by
representative as if by defendant—Evidence not given under oath—Evidential value.

Estoppel—Conduct, by—Acquiescence—Essentials of acquiescence under equity and customary

law—Action for declaration of title to land—Plea of estoppel by acquiescence—Defendant warned off
disputed portion of land by his grantor—Whether plea maintainable.

Courts—Local courts—Reliefs—Injunction-Power to grant interim injunction only—Claim for interim

injunction—Appeal from decision of local court to High Court—Perpetual injunction granted by High
Court—No amendment of relief claimed—Whether proper to grant perpetual injunction—Courts Act,
1960 (C.A. 9), s. 127—Local Courts Procedure Regulations, 1959 (L.N. 337), r. 167.

HEADNOTES
A. Q. granted a piece of land to the Presbyterian Church. In 1925 the church conveyed part of the land to
the defendant who built on a portion of it and fenced an area which he claimed to comprise his grant. In
1959 A. Q. conveyed to the plaintiff a portion of their land which formed a boundary with the land
originally granted to the church. The plaintiff instituted an action in a local court against the defendant for
a declaration of title and damages for trespass to, and perpetual injunction in respect of a portion of the
land fenced by the defendant. The defendant also counterclaimed for a declaration of his title to and
interim injunction in respect of the same land. The defendant who was blind was allowed by the court to
be represented and assisted by A. At the close of the case for the plaintiff, the defendant took the oath but
did not give evidence himself; instead A. testified on his behalf as if he were the defendant. One of the
witnesses for the defendant stated that when the defendant was fencing the

[p.411] of [1964] GLR 410

land, the church pointed out to him that he had overstepped the boundaries of the land conveyed to him.
The local court magistrate gave judgment for the plaintiffs. On appeal, the High Court reversed the
decision on the ground that A. Q. or their grantee were estopped by acquiescence from asserting title to
the disputed land and granted the defendant an order for perpetual injunction.
On further appeal to Supreme Court,
Held, allowing the appeal:
(1) where a person represents a party to a suit in a trial court and gives evidence in the first person in
the name of the party he represents, as if it were the party himself giving evidence the whole of that
 evidence is inadmissible. It was therefore wrong for the learned judge to have given any
consideration to the evidence of the young man who did not take any oath or affirm and gave
evidence as if he was a party to the suit. Adabla v. Agama (1940) 6 W.A.C.A. 165; Kissiedu v.
Ankrah, W.A.C.A., 25 February 1956, unreported and Osei v. Asiedu-Ofei (1944) 10 W.A.C.A. 87
cited.
(2) To establish acquiescence under equity and customary law, five conditions must be satisfied: the
person who enters upon another’s land must have done so in honest but erroneous belief that he has
the right to do so; he should have spent money in developing the land; the actual owner must be
aware of this person’s entry upon the land and his mistaken belief which is inconsistent with his
ownership; and finally he should have fraudulently encouraged his development of the land by not
calling his attention to the error. In this case the defendant was warned when he was fencing the
land in question. Moreover there was no evidence of capital having been expended to develop the
disputed land. The learned judge was therefore wrong in coming to a conclusion on acquiescence.
(3) Regulation 167 of the Local Courts Procedure Regulations, 1959, empowered local courts to grant
interim and not perpetual injunctions, and this the local court in this case rightly did. By virtue of
section 127 of the Courts Act, 1960 (C.A. 9), the appellate High Court could have made an order
for the writ to be amended to include a claim for perpetual injunction. Since this was not done, the
judge was wrong in granting a relief which had not been prayed for.

CASES REFERRED TO
(1) Adabla v. Agama (1940) 6 W.A.C.A. 165
(2) Kissiedu v. Ankrah, W.A.C.A., 25 February 1956, unreported
(3) Osei v. Asiedu-Ofei (1944) 10 W.A.C.A. 87
(4) Mercantile Investment & General Trust Co. v River Plate Trust, Loan &Agency Co. [1894] 1 Ch.
578; 63 L.J.Ch. 366; 70 L.T. 131
(5) Abbey v. Ollennu (1954) 14 W.A.C.A. 567
(6) Thompson v. Mensah (1957) 3 W.A.L.R. 240
(7) Suleman v. Johnson (1951) 13 W.A.C.A. 213

NATURE OF PROCEEDINGS
APPEAL from the judgment of Adumua-Bossman J. sitting at the High Court, Accra, on 26 June 1961,
reversing the decision of Accra East Local Court which gave judgment in favour of the appellant in a land
suit which involved a declaration of title to land.

COUNSEL
Hayfron-Benjamin for the appellant.
A.W. Acquaah for the respondent.

[p.412] of [1964] GLR 410

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. This is an appeal from the judgment of
Adumua-Bossman J. (as he then was), given in the High Court, Accra, on 26 June 1961, which reversed a
decision of the Accra East Local Court. The original appellant, hereinafter called the plaintiff, died when
the appeal was pending in this court, and Mensah Nii Boi was substituted upon his application for him, to
prosecute the appeal.
The claim of the plaintiff is for a declaration of title and damages for trespass to, and perpetual injunction
in respect of a piece of land situate at Labadi. The respondent, hereinafter called the defendant,
counterclaimed for a declaration of his title to and interim injunction in respect of the identical land.
The land in dispute is a portion of a section of Labadi land owned by a quarter known as Abafum. By
ancient grant which, according to one Edward Quaye, a 68-year-old gentleman, second witness for the
plaintiff, was made when he had not been born, the Abafum quarter conveyed portion of their said land to
the Basel Mission, predecessors of the Presbyterian Church; the western boundary of the land so granted
was demarcated, and upon the said grant, the missionaries erected pillars to mark the same; those pillars
were described by the third witness for the defendant as ancient pillars. Some time in 1925, the church
acquired a piece of land belonging to the defendant’s family, and in replacement, gave him portion of the
land granted to them by the Abafum quarter. The defendant went into possession of the land given him in
exchange for his family land, built on portion of it, and planted a hedge of Neem trees and Madras thorns
to enclose an area which he claimed comprised his grant.
In 1944 the Presbyterian Church who had then taken over the land of the Basel Mission, had a plan made
of the area granted to the church; they had the elders of the Abafum quarter present at the survey to
ensure that they kept within the ancient boundaries. This conduct of the church complies with customary
law. In the course of the survey an additional pillar was erected along that ancient boundary, at that part
of it where the defendant’s land is. The plan exhibit B in the case was made in consequence of that
survey.
In 1959 the Abafum quarter granted to the plaintiff a portion of their land which forms boundary with the
area granted to the church. The eastern boundary of the plaintiff’s land therefore runs along the church’s
ancient boundary with the Abafum quarter, and cuts across the area fenced in by the defendant.
The defendant is an old man, and unfortunately blind; therefore although he appeared to have been
present at the trial, one Andrew Richard Adzei Ashong was granted permission to represent him and to
assist with exhibits which might be tendered. After the close of the plaintiff’s case, the defendant took the
oath but did not give evidence himself, the said Andrew Richard Adzei Ashong proceeded to speak as if it
were the defendant giving evidence. The defendant thereafter called four witnesses.

[p.413] of [1964] GLR 410

After the close of the case for the defence, the local magistrate inspected the area in dispute, then heard an
address on behalf of the defendant. In due time he delivered judgment in favour of the plaintiff. He held
inter alia that the defendant was bound by the boundary of the land as shown by his grantor, the church,
and as appears on exhibit B. On the evidence, the findings made by the local court were clear, concise and
well-reasoned.
The learned judge of the High Court reversed the decision of the local court, dismissed the plaintiff’s
claim and entered judgment for the defendant, for declaration of his title to the area of land in dispute, and
made an order for perpetual injunction against the plaintiff.
The appellant appealed against that judgment of the High Court on six grounds of which the most
important are:
“(i) The learned judge allowed his mind to be influenced by evidence which was wrongly accepted and
further allowed his mind to be influenced by evidence which was challenged by a witness of the
 respondent and ought consequently to have been rejected.
(ii) In his exhaustive judgment the learned judge did not at all consider the case of the appellant and the
arguments put up by his counsel on his behalf.
(iii) The judgment of the learned judge is erroneous and inter alia sought to decree a relief which was not
asked for.
(iv) The judgment is against the weight of evidence.”

On the first ground counsel for the plaintiff pointed out that the decision of the learned judge was based
materially upon the statement made by the representative of the defendant. He submitted that since the
representative purported to speak as if it were the defendant himself giving evidence, the whole of that
statement is inadmissible and should have been completely disregarded by the High Court. Counsel cited
Adabla v. Agama1 to support his submission. Counsel for the defendant conceded this point made by his
learned friend.
It is trite law that if a person representing a party to a suit in a local court gives evidence in the first
person in the name of the party whom he represents, as if it were the party himself giving evidence, the
whole of that evidence is inadmissible, and should be completely disregarded as if that evidence had not
been given. In addition to the case of Adabla v. Agama (supra) cited by counsel for the plaintiff there is
also the case of Kissiedu v. Ankrah2; the case of Osei v. Asiedu-Ofei3 is to the same effect.
But the position in this case is worse than it is in those other cases. In this particular case the
representative Ashong never took an oath and did not affirm, therefore all that he said is a wash-out. In
law no judgment can be given on such alleged evidence. The learned judge therefore erred in considering
that statement, and in basing his judgment upon it.

[p.414] of [1964] GLR 410

The submissions of counsel for the plaintiff on grounds (ii) and (iv) above may be taken together. It is,
that having expunged the statement of the defendant’s representative from the record, the case of the
plaintiff stood unchallenged, and the learned judge therefore misdirected himself in holding that the
plaintiff was estopped by acquiescence on the part of his grantors, the Abafum quarter, from denying the
title of the defendant to the land. Counsel for the defendant on the contrary submitted that even conceding
that the statement of the defendant’s representative should be disregarded, there is sufficient evidence led
by the witnesses for the defence which support the findings made by the learned judge.
In the course of his judgment the learned judge of the High Court said:
“In his judgment the magistrate said: ‘it was established that the land which Adu occupied was granted by
the Presbyterian Church and as such the boundaries would be known by the Elders of the Church.’ I am
afraid I entirely disagree. If it had been one or more of the original Elders who took part in making the grant,
then there might be some degree of justification in the magistrate taking that view. But I cannot agree that the
Elders of the Mission who purported to agree with the Abafum elders to fix a new boundary in 1944
necessarily knew better than their honest old predecessors of former years. The whole demarcation business
of 1944 savours unpleasantly of an inglorious attempt on the part of the then Elders of the Church to collude
with the Abafum elders to provide some grounds for depriving the appellant of land which he had occupied
without question for nearly twenty years previously and in my view, shows the Church or Mission Elders in
a very discreditable light. May be most of the influential Church Elders were also of the Abafum quarter who
are more concerned with the material interests of their quarter and the gain which could undoubtedly accrue
from reclaiming lands parted with for a song in days long ago when land was of little or no value, to be sold
in these days when land values are so high, than with the high lofty ideals of the Presbyterian Church. But it
is unnecessary to speculate any further about the position. The factual and legal position is that the
demarcation does not and cannot affect the appellant Adu’s title acquired as far back as 1925 one jot,
particularly when his occupation in virtue of that title openly and publicly before the very eyes of the
 Abafum elders was not challenged but rather acquiesced in for the nineteen years prior to that demarcation.”

We asked counsel for the defendant if he could find any title of evidence on the record which warrant the
serious allegations of dishonesty and improper conduct which the learned judge made against the elders
of the church and of the Abafum quarter. He confessed he could find no justification for those remarks of
the learned judge, and added that he had previously expressed that opinion to his learned friend, counsel
for the plaintiff. We would observe that those remarks of the learned judge were most unfortunate, and
should never have been made.
Now the passage quoted from the judgment of the High Court reveals that the learned judge misdirected
himself on every material point in the case. In the first place he acted upon a supposition that the mission
and the Abafum elders fixed a new boundary in 1944, when the evidence is

[p.415] of [1964] GLR 410

that the ancient pillars on the ancient boundary are there, and all that was done was to go over that
boundary and to erect along it one new pillar in line with the ancient pillars erected by the German
missionaries. That ancient boundary with the pillars thereon is shown on exhibit B, the plan made in
1944. The “honest old predecessors of former years” of the church may be dead as the learned judge
rightly pointed out, but what about the stubborn ancient concrete pillars erected by them which still stand
firm eloquently testifying to their honesty, and the honesty of their successors, the present elders; can
those ancient concrete pillars lie? We think not.
Again the learned judge misdirected himself by failing to direct his attention to the evidence given by the
defendant’s own witness Bennett Edward Tetteh Boye, his third witness, that the church pointed out to
the defendant when he fenced in the land that he had overstepped the boundaries of the land given to him
by the church, but instead of the defendant rectifying the situation, his daughters abused the elders of the
church for so drawing attention to the trespass.
It is true that the evidence, supported by the inspection report of the local magistrate, shows that the
defendant fenced in the land in dispute together with the land on which his building stands, and that he
did so about 36 years or so ago, and that he and his children have consistently resisted any attempt made
to get him to shift his hedge to the proper line. But can those facts operate either in equity or in customary
law to estop the Abafum quarter or their grantee, the plaintiff, from asserting title to and recovering
possession of that portion of the land in his wrongful possession? The answer is no, and the reasons for
that answer are as follows:
In the first place the church from whom the defendant derived title, did not own any land beyond the
boundary along which are the ancient pillars; therefore even if they had granted to the defendant the
whole of the land fenced in by him, which they deny, their grant will be invalid and ineffective in respect
of the land west of the boundary, and the defendant got no title thereby to the land west of their boundary.
In any event the existence of the ancient pillars bear out the truth of the church’s assertion that the grant
they made to the defendant terminates in the west with the ancient boundary.
Again both from the principles of equity-which is now part of the Ghana common law-and the principle
of customary law, the elements necessary to establish acquiescence are: (1) the person who enters upon
the land of another person must have done so upon honest, though erroneous belief, that he had right to
occupy the land, (2) he must have expended some considerable sum of money on or in respect of the land
upon the faith of his mistaken belief, such that he cannot be compensated for in money’s worth, (3) the
owner of the land must know all the time that he has right to the land which is inconsistent with the
erroneous right claimed by the other, (4) the owner must know of the mistaken belief of the other person,
and (5) the owner must by his silence or otherwise have fraudulently
[p.416] of [1964] GLR 410

encouraged the other party to spend his money to develop the land and had not called his attention to his
error: see Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and Agency Co.,4
Abbey v. Ollennu,5 Thompson v. Mensah6 and also the Nigerian case cited by the learned judge of the
High Court, namely, Suleman v. Johnson.7 If any one of those five essentials is proved not to exist, there
is no acquiescence and an order for recovery of possession will be made against the person in possession
irrespective of the duration of his said possession.
Applying those principles to this case, it is clear that the evidence that the defendant was warned by the
church of his trespass, the existence of the ancient boundary and the evidence of the resistance he and his
children gave, as his own counsel pointed out, to every effort made to correct any erroneous belief he
might have had, negatives any presumption that his possession was based upon an erroneous belief in his
title to the land, or that his wrongful possession was fraudulently encouraged by the true owners. And as
to expenditure of capital to develop that portion of the land, the inspection report of the local magistrate
shows that the only structure on that part of the land is a corrugated asbestos sheets structure in the course
of construction during the progress of the suit, apart from that the only thing the defendant can point to, is
the hedge aged about 36 years, which cannot be regarded as a capital development of land that cannot be
compensated in money’s worth. In those circumstances the learned judge misdirected himself on the
question of estoppel by acquiescence, and wrongly applied the cases he cited.
One other point deserves attention, when the appeal was before the High Court, the learned judge suo
motu ordered a plan to be made showing the area in dispute, and appointed one Mr. Annim Ayeko, a
licensed surveyor, to undertake the work. The said surveyor was not called to give evidence, and there is
no record that the plan made in consequence of the said order was admitted in evidence. Neither counsel
has a copy of that plan, and a copy of it was not before us at the time the appeal was argued, as the clerk
in charge of exhibits was then not available to produce it to the court. There are no direction in the order
for the plan for the parties and or their witnesses to attend the survey, and to point out to the surveyor any
features on the land in support of their evidence.
We have now had the advantage of seeing the plan, exhibit Z. On the face of it, it was admitted in
evidence by consent. It also shows that Wulomo Annang, the only witness who gave evidence on behalf
of the defendant as eye witness to the grant made to the defendant, did not point out anything to the
surveyor at the survey; and that the only persons who gave any information to the surveyor are: the
defendant, the plaintiff, and the representatives of the church. The only new facts shown on that plan,
exhibit Z, which are not contained in the record of proceedings and

[p.417] of [1964] GLR 410

on the plan, exhibit B, are (i) that the ancient pillars were erected as far back as the year 1873; (ii)
different colours were used showing the claims of the plaintiff, the defendant and the Presbyterian
Church, and (iii) the asbestos sheets structure referred to by the local magistrate in his inspection report as
under construction, is shown on exhibit Z as built about a year ago. Since the plan is dated 23 May 1961,
the statement on it that the structure was built about a year ago, substantially corroborates the statement in
the inspection report, that it was under construction in 1960 during the pendency of the case in the local
court.
We would say that on the face of it the plan, exhibit Z, rather makes the case of the plaintiff stronger. The
position of the ancient pillars relative to the one pillar erected in 1944 touching the defendant’s land,
leaves no room for doubt that the defendant could not have made any mistake about the existence and
direction of the ancient boundary of the church, marked red on exhibit Z, and that he crossed the same
with full knowledge of its existence. There is nothing whatever on that plan, exhibit Z, which can
possibly lend any weight to the defendant’s case. So that the plan, exhibit Z, is not of any evidential value
for the defendant. Therefore the learned judge erred in attaching such great importance to it.
Again, in his evidence before the trial local court, Wulomo Annang, the only witness for the defendant
who testified from his knowledge as to the grant made by the church to the defendant, gave no description
and extent of the land he alleged was granted by the church to the defendant, to that extent his evidence is
valueless. On the whole, therefore, the defendant was not able in any way to meet the strong case made by
the plaintiff; the plaintiff’s case, therefore, stands unchallenged, and fully supports the well-considered
judgment given by the local court.
On ground (iii) counsel for the plaintiff referred to the counterclaim of the defendant and pointed out that
the only other relief claimed by the defendant by that writ in addition to his claim for declaration of title is
“injunction to restrain the defendant until final determination of the suit.” He submitted therefore that the
learned judge of the High Court misdirected himself in the order he made as follows, “there is hereby
granted an order for perpetual injunction as claimed in suit No. 252/60,” thereby granting to the defendant
a relief which he did not in fact claim. In reply to that submission counsel for the defendant referred to
regulation 93 of the Local Courts Procedure Regulations, 1959,8 which he said empowered a local court
to make any order “which it considers necessary for doing justice whether such order has been asked for
by the party entitled to the benefit of the order or not.” He therefore submitted that in the exercise of its
appellate jurisdiction the High Court can make any order which a local court could have made.
Now it will be found that in making his submission counsel for the defendant overlooked the most
important and operative words in the said regulation 93. The regulation reads:

[p.418] of [1964] GLR 410

“93. A Local Court may in its discretion make any order within its powers and jurisdiction which it
considers necessary for doing justice whether such order has been asked for by the party entitled to
the benefit of the order or not, . . .”

The operative words in that regulation are: “make any order within its powers and jurisdiction.” Therefore
any order a local court may make must be shown to be “within its powers and jurisdiction” as conferred
by the enactment creating the court. It will be noticed that the only enactment which gave a local court
power and jurisdiction to make an order for injunction was regulation 167 of the Local Court Procedure
Regulations, 1959 (supra); but that regulation limited the powers and jurisdiction of the local court to
“interim injunction,” it did not give the local court jurisdiction to order perpetual injunction. It will also
be noticed that the local court did, on 20 June 1960, grant the defendant the interim injunction he prayed
for, and ordered “that the land in dispute must remain in possession of the opposer (defendant) till the
final determination of this case”; by that order the claim for interim injunction determined. The local
court can now, by virtue of regulation 127 of the Local Courts Procedure Regulations, 1962,9 grant
perpetual injunction.
Of course the High Court, as an appellate court, could in the exercise of the wide powers given to it by
section 127 of the Courts Act, 1960,10 have made an order “which it shall consider just” in which case it
could grant amendment to the writ to include a claim for perpetual injunction. But this it did not do, it
assumed quite wrongly that the defendant had claimed perpetual injunction, when he had not, and when
he had already obtained the relief for interim injunction which he prayed for.
In fine, therefore, none of the grounds upon which the High Court reversed the decision of the local court
can be supported in fact or in law.
For these reasons the appeal is allowed, the judgment of the High Court is set aside including the order as
to costs, any costs paid to be refunded, the judgment of the local court in favour of the plaintiff is
restored.
The appellant will have his costs in the High Court assessed at £38 10s. 0d. and his costs in this court
fixed at £62 4s. 9d.
Court below to carry out.

DECISION
Appeal allowed.
N. A. Y.